How the CDM regulations will impact on retail and leisure businesses

In this article we give an overview of the comments of Philip White, Head of HSE’s Operational Strategy Committee, on the implications of the new CDM Regulations, particularly for retail and leisure businesses.

On Monday, 6 April 2015, the Construction (Design and Management) Regulations 2015 (CDM 2015) came into force and replaced CDM 2007. We consider how this will impact anyone in the retail and leisure sectors when planning and undertaking construction work. 

At DWF’s event in April 2015, Philip White, former Chief inspector for Constructions and Head of HSE’s Operational Strategy Division, discussed the changes under CDM 2015 and what they will mean in practice. CDM 2015 is similar to CDM 2007 but there are some important changes to be aware of when undertaking construction work. For our analysis of the key changes see article. This article refers to the likely implications for business, particularly for retail and leisure, which include: 
  • CDM applying to more small projects.
  • Increased duties imposed on the retailer as the Client.
  • The abolition of the role of CDM Co-ordinator.
  • The introduction of the role of Principal Designer, who will be responsible for most of the pre-construction duties formerly undertaken by the CDM Co-ordinator. 

Below we have shared a range of insights into HSE’s priorities and concerns which arose during our recent events, including commentary from Mr White.

More small projects included

As with CDM 2007, the definition of construction work is very wide and may include development, maintenance, conversion and decoration work.

Mr White explained that the standards required on a construction site have not changed but that the new regulations apply to more small projects which will be a new area of focus for most business. He said that HSE’s focus will initially be on refurbishment work.

Mr White stressed that there is to be proportionality in the approach to CDM 2015 and that there will be no changes to HSE’s enforcement policy. HSE is looking for a sensible and practical application of the legislation, particularly in smaller projects.

By way of illustration emergency repairs may now fall under the CDM regime because the works require more than one contractor. Clients must consider what arrangements they already have in place for managing contractors coming in to do work, for example, using only Gas Safe registered engineers. Mr White encouraged a pragmatic approach, which will often have minimal (or even no) design element. In some cases, the Client will have arrangements in place for dealing with certain tasks, such as emergency electrical repairs. If the works turn out to be more onerous, further planning can be done when this becomes apparent.

Client Duty - now much more onerous

The Client has the overall responsibility for the successful execution of the project from start to finish. Mr White explained that CDM 2015 has strengthened the role of the Client because of the role they have in the supply chain and the degree of control they have over the procurement process. 

Where work involves more than one contractor, the Client needs to appoint a Principal Designer and a Principal Contractor. Mr White confirmed that ‘More than one contractor’ is being interpreted as there being more than one ‘trade’ contractor on site. If the Client appoints a contractor who sub-contracts the work further, this will mean that there is more than one contractor on site. 

This is a major concern for certain maintenance and repair work which falls under the definition of construction work. Given the wide definition it is very likely that retail and leisure operators will have more than one contractor on site carrying out “construction” work. In these cases a decision will need to be made about who will be the Principal Designer. In relation to this Mr White advised that many operators had good systems in place that would only need small tweaks to bring into line with the new provisions.

New Principal Designer role

Mr White explained that there is more that the design profession can do to design out problems which will improve ongoing health and safety, given their place in the supply chain, and that CDM 2015 has addressed this. 

The role of the Principal Designer shares some similarities with the role of the CDM Co-ordinator but there remain some significant differences which must be taken into account. Mr White said that it was not a like-for-like swap. The rationale for removing the role of the CDM Co-ordinator was to embed the co-ordination role into the project team. The Principal Designer is the Client’s first key appointment.   

Mr White explained that there was a concern that designers will not be capable of performing the role of the Principal Designer and that this was likely to be correct initially but that the aim of CDM 2015 was to get the industry skilled up in the longer term. He said that the role could not easily be shared, but stressed that in many instances, the legal responsibility of the Principal Designer would lie with an organisation, not an individual. 

It is worth noting that organisations can fulfil the role of the Principal Designer, as well as individuals. Depending on the project’s scale, it may be that an organisation’s  resources are needed, or a Client may decide to undertake the Principal Designer role itself but bring in resource to assist. The role of Principal Designer requires that a person/organisation fulfilling the role is closely involved in the project, understanding and assisting in all aspects of designs. The objective of the legislation is to ensure that the Principal Designer’s role is central to the project.  

If you have any questions about the article or would like further information, please contact one of our specialists below.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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Dominic Watkins

Partner - Head of Food Group

I am Head of DWF’s internationally renowned food sector group as well as being Head of Regulatory in London.

Steffan Groch

Partner and Head of Regulatory - Head of Sectors

I head up DWF's national Regulatory team as well as leading the firm’s ‘go to market’ sector expertise. I am also Chair of the UK Health and Safety Lawyers Association.